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Are your employment contracts 'comic' enough?

Ordinarily, there is nothing very comic about legal contracts. In particular, employment contracts can be long, difficult to understand and full of legalese. As a way of tackling this, there is an emerging trend to think outside the box when it comes to contract law and expressing legal concepts. In this week’s client alert, we discuss the creative innovations that are being considered in contract design, specifically through the use of illustrations, diagrams and other comic-book like imagery.

Law is traditionally communicated through words, and the inclusion of pictures to convey legal substance is frowned upon. However, visualisation in law to convey key legal concepts seems to be an emerging trend that is gaining a stronger foothold both within Australia and the international legal community.

Comic books forming legal relationships

The idea of comic book contracts was initially explored by Professor Camilla Andersen of the University of Western Australia (“UWA”). She was approached by a Professor in the Engineering Faculty of UWA to draft contract terms to assist engineering students understand their obligations while working on UWA projects for external engineering businesses. Professor Andersen, who had already been pioneering this movement, seized the opportunity to persuade the Professor to use comic strips to create a full non-disclosure agreement and IP Protection for the students. Since then, Professor Andersen has also been working on a variety of other “comic” like legal contracts and agreements.

In particular, Professor Andersen recently assisted engineering and infrastructure consultancy company, Aurecon (a merger of Australian company Connell Wagner and South African enterprises Africon and Ninham Shand) to introduce the country’s first visual employment contract to its employees. Aurecon hopes to have the visual employment contracts signed by 1200 employees by the end of this year. The company has stated that they are enthusiastic for the new initiative, believing it would lead to easier onboarding and a more open and transparent employee relationship.

The concept of comic book contracts is also attracting worldwide attention. For instance, a lawyer from South Africa, Mr Robert de Rooy created a comic book employment contract for a farming business who employed seasonal fruit pickers. The workers employed by the farming business are usually low income and vulnerable employees, many of whom were illiterate. Mr de Rooy explained that during harvest time, the workers would usually undergo an induction where they were provided a lengthy contract in English even though that was not the native language. The business would then have a representative translate the entire contract to the workers and the induction process would take approximately 4 hours. However, Mr de Rooy’s comic book employment contract was completely picture based and used illustrations to communicate ideas in a graphic novel style. The pictorial contract portrayed what the workers could expect from the business and what was expected of them in order to have a successful relationship. The workers still had the opportunity to go through the visual contract and ask any questions. The use of the pictorial contract reduced the induction process to 40 minutes. Mr de Rooy explained that the company in this instance chose to use the comic book style contract because they believed it was important for employees to clearly understand the expectations upon them. It was also beneficial for both parties to understand their respective rights and obligations. An example of Mr de Rooy’s contract can be accessed by following this link: ]]>https://goo.gl/images/Du51ko]]>.

A further example of how this growing trend is being utilised in other fields has been demonstrated by an American artist, Mr Robert Sikoryak. At this point, it may be interesting to ask our readers to think back to the last time you purchased a new mobile phone. While you were excited to get started with your new phone and commence the set-up process, the telecommunications service provider’s terms and conditions of use would have undoubtedly got in the way of this. The question here is whether you read the entirety of the long drawn out terms and conditions or do you quickly scroll down and click the box that states “I agree”? We think it would be safe to say the majority of people all scroll down quickly and tick that box in order to move onto the next step without having an inkling at all as to what they had just agreed to. In this regard, Mr Rikoryak took up the challenge of condensing Apple’s 20,669-word terms and conditions into an easy to read graphic novel incorporating images of the late Steve Jobs transformed into famous comic characters such as Snoopy, Homer Simpson, the Hulk and a variety of other superheros. As a result, Mr Rikoryak has been praised for making Apple’s terms and conditions of use more accessible, readable and easy to understand for ordinary people.

Comic books and the law

Now, you may be wondering whether an illustrative legal contract would be considered legally binding. A former Chief Justice of Australia, Robert French recently stated at the Inaugural 2017 Comic Book and Creative Contracts Conference that as long as the meaning of the pictures can be interpreted and given meaning to, the Court should be able to deal with comic book contracts and they would be considered, in his view, capable of having legal force.

The concept of comic book contracts or any illustrative contract, takes contracting to a new level. It is easy to see the benefits of creative contract designs and the use of comic books and other illustrations to express legal concepts to assist everyday people, and in turn make the law more approachable. Visualised contracts are aimed to drive behaviour rather than legal obligations and as such is intended to reduce conflict as all parties are able to easily understand their rights and obligations. Illustrative contracts can also create tone and feeling, for example, by depicting management and workers on the same level or height to portray a non-hierarchal organisation, and/or workers and management smiling at each other to illustrate the organisation’s inclusive culture. In addition, there have also been discussions at local government level of utilising illustrative contracts, in particular with vulnerable demographic groups (such as Indigenous Australians) in order to explain key legal concepts.

However, on the other side of the coin, there is a certain apprehension in relation to relying on visual and creative contracts. Lawyers traditionally aim to anticipate as much as they can when drafting contracts and attempt to cover every possible scenario that may arise during the legal relationship. In this regard, there is concern that as soon as contracts are oversimplified in order to translate comprehensive legal concepts into simple images, the contract can lose nuance, significance and meaning. Furthermore, while it is good to simplify employment arrangements, many problems can arise if employment contracts are not carefully drafted or lack specificity. It may be risky for an employer to rely completely on a visual employment contract as traditionally the Courts have been reluctant to imply meaning when interpreting and giving effect to the legal arrangements between contracting parties. For instance, when an employer seeks to enforce a restraint of trade, the language used in the contract becomes significant to the exercise undertaken by the Court in determining whether the restraint provisions are enforceable. A better approach in these circumstances may be to use a written contract that is drafted in plain language, rather than imagery that is more susceptible to subjective interpretation.

In light of the increasing rise for both lawyers and businesses to consider new ways to create contracts, it will be interesting to see whether this movement will be widely adopted. In particular, organisations who employ vulnerable workers (such as where English is their second language and/or people with disabilities) may consider utilising creative ways to explain their contracts in order to bridge language and/or education barriers. Our view is that the concept of pictorial contracts should be used to supplement the written contract, rather than replace the contract entirely. It will also be interesting to see how the Australian Courts interpret and deal with comic book style employment contacts when disputes arise.

In our view, there is no safer form of protection for employers other than to implement comprehensive and robustly drafted employment contracts. That is not to say such contracts should contain legalese or verbose language and should be drafted in plain English for the sake of all parties. We are not convinced, however, that comic-book style illustrations have a place in the contract of employment when expressing complex legal concepts, although we believe there is merit in employers using such creative mediums and other innovations to simplify auxiliary workplace documents such as policies and procedures, recruitment forms and induction materials.

If any further information in relation to any aspect of this alert is required, please do not hesitate to contact our office. We otherwise look forward to hearing from you in relation to your views regarding the concept of comic-book style contracts.

This alert is not intended to constitute, and should not be treated as, legal advice.

Keypoint Law Pty Limited (ABN 81 168 229 909) is an incorporated legal practice registered with the Law Society of New South Wales under the Legal Profession Uniform Law (NSW). Keypoint Law has been established by Keystone Law Limited, an award winning United Kingdom law firm.